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McKeage v. Bass Pro Outdoor World, LLC

United States Court of Appeals, Eighth Circuit

December 4, 2019

Robert McKeage, on behalf of themselves and all others similarly situated; Janet McKeage, on behalf of themselves and all others similarly situated Plaintiffs - Appellants
v.
Bass Pro Outdoor World, LLC; TMBC, LLC; Tracker Marine Retail, LLC Defendants - Appellees

          Submitted: September 25, 2019

          Appeal from United States District Court for the Western District of Missouri - Springfield

          Before KELLY, MELLOY, and STRAS, Circuit Judges.

          KELLY, Circuit Judge.

         Robert and Janet McKeage filed this class action lawsuit in 2009. They alleged that TMBC's nationwide practice of charging a fee for preparing legal documents when selling boats and trailers constituted unauthorized law business in violation of Mo. Rev. Stat. §§ 484.010 and 484.020. The district court granted summary judgment to the class and awarded attorney's fees and costs from the common fund. We affirmed the grant of summary judgment but reversed and remanded the award of attorney's fees and costs, directing the district court to enforce a contractual fee-shifting provision that entitled the class to recover "all litigation costs and expenses, including reasonable attorneys' fees" from TMBC.[1] On remand, the district court shifted $2, 398, 353.09 in attorney's fees to TMBC but awarded $700, 000 in costs from the common fund.

         The McKeages appeal. They contend that the district court erred in awarding costs from the common fund, in denying as "speculative" $18, 633.56 in future costs, and in declining to award additional attorney's fees from the common fund. TMBC counters that the class members lack standing to bring this action. We conclude that the plaintiffs have standing, and we find no error in the amount of attorney's fees and costs awarded, but we reverse the district court's decision to award the plaintiffs' costs from the common fund rather than shifting them to TMBC.

         I. Standing

         After ten years of litigation, TMBC asserts, for the first time, that the class members lack standing because they voluntarily agreed to pay the document fee as part of their boat purchases. In TMBC's view, the class members were not injured because they "wanted what they got and got what they wanted." We disagree.

         The class members have a statutory right not to be charged for law business by a non-attorney. TMBC's violation of that right caused a "particularized" injury that affected the class members in a "personal and individual way." Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1548 (2016) (citation omitted). Paying a fee they should not have been charged was also a "concrete" injury, not an "abstract" one that does not "actually exist." Id. (cleaned up). Thus, the class members suffered an injury in fact and have standing to bring this action. Cf. Hargis v. Access Capital Funding, LLC, 674 F.3d 783, 791 (8th Cir. 2012) (a plaintiff who did not pay a fee for unauthorized legal services did not have standing to bring an unauthorized-practice-of-law claim).

         II. Attorney's Fees

         The district court initially awarded the class $2, 425, 359.42 in attorney's fees from the common fund (33% of the plaintiffs' untrebled damages). McKeage v. Bass Pro Outdoor World, L.L.C., No. 12-03157-CV-S-GAF, 2015 WL 13637253, at *5 (W.D. Mo. Aug. 11, 2015). We reversed, finding it inequitable for the common fund to pay the entire fee award when a contractual fee-shifting provision entitled the class to recover "all litigation costs and expenses, including reasonable attorneys' fees" from TMBC. McKeage, 847 F.3d at 1004. However, because there is "a distinction between the amount a losing party may be required to pay under an agreed-upon contractual fee-shifting provision and the amount a class member should equitably be required to pay his or her own lawyer under the common fund doctrine," we left the decision of whether to award additional fees from the common fund to the district court's discretion. Id.

         On remand, the district court awarded the class $2, 398, 353.09 in attorney's fees, to be paid by TMBC, under the lodestar method. It declined to award additional attorney's fees from the common fund. On appeal, the McKeages do not contest the district court's lodestar calculation or the amount it shifted to TMBC. They argue only that the district court abused its discretion in not awarding additional attorney's fees from the common fund.

         We emphasized in our prior opinion that the decision of whether to award additional fees from the common fund was discretionary. McKeage, 847 F.3d at 1004. In awarding only the lodestar amount, the district court effectively decided that it was not inequitable for the class to receive the full damages award while class counsel received a presumptively reasonable fee from TMBC. See City of Burlington v. Dague, 505 U.S. 557, 562 (1992) ("We have established a strong presumption that the lodestar represents the reasonable fee." (cleaned up)). The McKeages have not contested the district court's lodestar calculation, and we find no abuse of discretion in the district court's decision to award only that amount.

         III. ...


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